Fundamentals of flight: drones in legalese

Drones hold considerable potential as a tool for monitoring the progress on construction site, with signficant implications for dispute resolution — but hurdles to drone use remain

Andrew Goddard QC and Simon Crawshaw, from Atkin Chambers, conduct a fly-over of the legal case for and against drone usage.
Andrew Goddard QC and Simon Crawshaw, from Atkin Chambers, conduct a fly-over of the legal case for and against drone usage.

The development of unmanned aerial vehicles (UAVs), or ‘drones’, is revolutionising building sites across the globe. Drones are increasingly being used in the construction industry for aerial survey work and to perform functions around site security.

The speed and ease with which drones can be used to undertake photographic surveys, enable regular/daily photographic or video site diaries and facilitate remote inspections of sites by inspectors and external experts, among other potential uses.

When disputes occur on large construction and engineering projects, the process of agreeing upon the as-built programme can throw up a number of problems — records are often incomplete or in limited detail, for example. A disputed or inadequate as-built programme can lead to further difficulties when trying to get to the bottom of the true causes and effects of alleged delays.

This is one instance where drones can be invaluable. Drone evidence gathered from when construction begins can allow progress to be monitored and recorded on a more regular basis.

Expert delay evidence is often criticised for being too theoretical, but drone evidence can help courts and tribunals get a much tighter grip on the objective facts of a case. This could put greater pressure on expert delay analyses to account for what actually happened. In the past, opinions and assessments have instead often relied on partisan accounts of the effects that delays or other events had on progress.

In one recent example of an ongoing project, drones were able disprove a contractor’s claim that access to a part of the site was impossible. Drone videos showed that the contractor had managed to overcome the problem with a little ingenuity, and this meant there could be no delay caused by access.

On the machinery side, Japanese equipment manufacturer, Komatsu, has launched a system called ‘Smart Construction’, which provides high-precision 3D surveys of sites using drones, a 3-D laser scanner, and stereo cameras installed on the operator seat of excavators and other machinery.

The survey data of the site can then by compared to the customer’s construction plans to produce a model detailing the height and volume of earth to be moved in each area during construction. Machines can then carry out the work with minimal human input, and when construction begins, real-time progress is plotted on a construction plan simulation.

However, one of the biggest obstacles stymying the wider adoption of drones is the regulatory restrictions in many countries. Over in the UK, for example, restrictions that undermine the effective use of drones in many construction projects include the requirements for operating within a Visual Line of Sight, as well as the permissions needed from the UK CAA and the relevant Air Traffic Control Unit for operations.

This April, Dubai introduced four drone no-fly zones — the International Airport, Al Minhad Air Base, the Palm Jumeirah around Skydive Dubai and Al Maktoum Airport — and nine other zones which require registration or permission for operating drones.

Dubai’s civil aviation authority justified the zones by citing the potential danger of drone operations in these areas. Indeed, in an incident a month earlier, a drone incursion caused the shutdown of the Emirate’s airspace for 55 minutes, at considerable cost to the economy, and demonstrating the tension between drones and aircraft.

The restrictions in Dubai reflect a wider trend: in some areas of the globe, the regulatory hurdles are actually increasing. Aviation authorities are, by nature, conservative and risk averse.

Other jurisdictions appear to be moving in the opposite direction, with moves in the US in late June to relax rules governing small unmanned drones weighing 24kg or less. Despite these signs of greater flexibility in the USA, however, the tension between legitimate safety concerns and the huge potential economic value of drones is likely to continue for the foreseeable future, not least in the Middle East.

Nevertheless, the likelihood is that the use of drones and drone evidence will increase, especially in legal action and dispute resolution. For disputants, experts and tribunals alike, the value of being able to demonstrate and view the progress of a project on a daily or weekly basis is an advantage which, it can be expected, will not be given up lightly.

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